R v Zdravkovic [2004] NSWSC 431

New South Wales Supreme Court

CITATION : R v Zdravkovic [2004] NSWSC 431 HEARING DATE(S) : 14/05/2004 JUDGMENT DATE : 14 May 2004

JUDGMENT OF : Howie J at 1 DECISION : In respect of the first count on the indictment the offender is sentenced to a fixed term of imprisonment of 2 years to be served by way of periodic detention to commence on 21/5/04 and to expire on 20/5/06.; In respect of the second count on the indictment the offender is sentence to a fixed term of imprisonment of 5 months to be served by way of periodic detention to commence on 21/5/06 or a date close to a date to attend period detention and to expire on 25/10/06 or thereabouts.

CATCHWORDS : Criminal Law - sentence on guilty plea - no question of principle. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 PARTIES : Regina v Robert Zdravkovic FILE NUMBER(S) : SC 070108/02 COUNSEL : R. Herps - Crown J. Weller - Offender SOLICITORS : S. Kavanagh - Crown John D. Weller & Associates - Offender

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HOWIE J

FRIDAY 14 MAY 2004

070108/02 REGINA v ROBERT ZDRAVKOVIC

REMARKS ON SENTENCE 1 HIS HONOUR: On 5 December last, the offender pleaded guilty to two counts on an indictment. The first count alleged that on 17 October or thereabouts, at Newcastle, he knowingly took part in the supply of methylamphetamine in an amount which was not less than the commercial quantity for such drug. This offence usually carries a maximum penalty of twenty years' imprisonment. 2 The second count on the indictment was one which alleged on 23 September 2001, at Murwillumbah, he knowingly took part in the supply of methylamphetamine in an amount which was not less than the commercial quantity for such drug. That also, of course, is an offence which carries a maximum penalty of twenty years. 3 On the face of it, an offender who had pleaded guilty to two such offences would expect, and the public would expect, that he would receive a very significant prison sentence, one probably getting towards double figures. That will not be the outcome in this particular case because of the somewhat extraordinary and unusual circumstances in which the offences were committed and the criminality which is alleged against the offender. Any person who in subsequent times considers the sentence and the outcome of it could understand that it is an extraordinary case with very special facts and that in no way does this sentence represent what would, generally speaking, be a proper form of punishment for offences of this nature. 4 The two offences arise from a relationship that the offender had with a man named Walsh. For a period covering the two charges, Walsh was a major supplier of methylamphetamine in the Newcastle area. He was a high ranking member in the Nomads motor cycle club who used that position to distribute drugs to members of the club and other members in the community for a long period of time with complete immunity. He was, on the evidence that I have heard in other cases, a man who could resort to violence, if necessary, in order to either obtain his way, or to punish those who had in some way misbehaved against him. 5 Walsh carried out his business using persons with whom he came into contact. The major assistant in this enterprise was his wife, Melinda Love. She was involved in that part of the enterprise which required to receive from Walsh or his associates pure, or almost pure methylamphetamine and to mix it with dextrose in order to cut its purity and then package it for distribution. 6 Mr Walsh distributed the drug to members of the motor cycle club, as a general rule, and Melinda Love distributed it to other persons outside the club and the community. There is no doubt that a number of persons who were otherwise law-abiding citizens in the community became entangled in Mr Walsh's enterprise and as a consequence of this committed criminal offences. I have sentenced one person so far because of his involvement with Mr Walsh who otherwise, I am satisfied, would never have criminal offences of any seriousness at all. I think that the present offender falls into the same category. 7 The offender knew Mr Walsh from school days. Eventually they came in contact again mainly because the offender had, and maintains, a reputation as a very fine spray painter indeed. 8 Part of Mr Walsh's criminal activity, when he was not completely engaged in distributing methylamphetamine, was to steal motor vehicles - I do not mean motor cars - to have them taken apart, to use the parts in vehicles which he owned in the construction side of his affairs and also to rebirth vehicles which he used in the course of his trade. It was in the course of this criminal enterprise that he was engaged in that he came into contact with the offender. 9 The offender was asked by him to spray paint a vehicle and became involved in assisting Mr Walsh with both legitimate and illegitimate activity involving the use of construction vehicles. 10 Incidentally, so it seems to me, the offender also was ensnared into Mr Walsh's serious criminal activity of supplying methylamphetamine in very large quantities indeed. 11 The two offences that are before me are offences of some degree of a highly technical nature. They would not have been committed without the involvement by the offender with Mr Walsh. One of them occurred when he was working for Mr Walsh. The other occurred shortly after he left Mr Walsh's employment. 12 The offences cannot even be described as opportunistic because the opportunity that was taken to commit the offence did not come from the offender. 13 Both offences arise from the fact that Mr Walsh used to obtain his source of methylamphetamine from a man in northern New South Wales, another member of the Nomads motor cycle club who, if not the producer of the drug was very close to the person who was. Mr Walsh had to, from time to time, have somebody go to northern New South Wales to obtain the drug and bring it back to Sydney where Melinda Love would mix the drug with dextrose and ultimately put it on its way to distribution. 14 There have been a number of persons before me who have become ensnared, as it were, in these trips to northern New South Wales. So far there has not been a conviction in respect of their participation in Mr Walsh's conduct, principally because the jury were not satisfied beyond reasonable doubt that they were aware that Mr Walsh was obtaining drugs on those trips, rather than simply carrying out business associated with the Nomads motor cycle club. I think it is highly significant, particularly now having seen a number of persons being acquitted by a jury, that the activity in which the offender was engaged, that the offender has maintained his pleas of guilty. I take the pleas of guilty as a sign of contrition and acceptance of his criminal responsibility, such as it is, and give full weight to it. 15 There is an agreed statement of facts. It is unnecessary for me to read it onto the record. I will have it as an annexure to the sentencing remarks. It is enough to indicate that in respect of the first of the offences on the indictment the offender became involved in part of Mr Walsh's drug enterprise when Mr Walsh took an opportunity, when he was in Queensland, to have his wife, Ms Love, obtain some drug and to mix it with dextrose and to bring it back to Newcastle. 16 In order to save Walsh and Love from coming back to Newcastle with the drug and it then being distributed, Walsh formed the view that it would be preferable for one of his associates to travel from Newcastle to northern New South Wales with Melinda Love's equipment so that the drug could be obtained from its source and immediately the distribution process could take place. 17 The offender, I have no doubt, simply because of his employment with Mr Walsh, was brought into the activity which was being conducted by Mr Chapman, one of the persons who also was an associate and at one stage worked for Mr Walsh, and accompanied Chapman from Newcastle to the source of the drug, was present while Melinda Love cut the drug down with dextrose and accompanied Mr Chapman when he brought the cut down drug back to Newcastle for distribution. 18 There is no suggestion whatsoever, apart from the fact that the offender accompanied Mr Chapman and that at one stage on the way back drove the motor vehicle, that he was otherwise engaged in the supply of that amount of drug. That being the case, his criminality in respect of that matter is at the very lowest end of the scale. 19 The second matter is even more of a case of mischance so far as the offender is concerned. Mr Walsh, for some reason best known to him, would never make a trip to northern New South Wales to pick up the drug without being accompanied by some other person. That is so even though Mr Walsh may have driven all the way there and back again and that the person who accompanied him had little part to play, apart from keeping Mr Walsh company and doing his bidding, such as obtaining petrol, or a drink, or lighting a cigarette, or changing the radio station for him. 20 Mr Walsh on this occasion sought to find some person to accompany him and initially sought the assistance of Ms Chapman, a person who worked for Melinda Love in cleaning the house. She was also involved in the supply of methylamphetamine on a very minor basis in that she was used to test the purity of the drug once Melinda Love would cut it with dextrose. She was referred to as a rabbit. 21 Ms Chapman at that stage was working for the police. She was not only relaying information to the police as to what was happening but on occasions she participated in a controlled purchase of the drug and also wore a listening device. 22 Ms Chapman refused to accompany Mr Walsh to obtain the drug, notwithstanding that Walsh tried to badger her into accompanying him on this occasion. When she refused to go, Mr Walsh decided to contact the offender who, by that stage, was no longer working for him and on this particular occasion just happened to be working at Karuah, a town through which Mr Walsh would have to pass on his way north. 23 For some reason or other, probably because the offender hoped to obtain some amphetamine himself free of charge, he agreed to accompany Walsh and Walsh picked him up from Karuah and took him north. When they arrived at the source of the drug, the offender was present when Walsh obtained some one pound of drug and secreted it in the motor vehicle. Fortunately for the offender and Mr Walsh, and fortunately for the community, the police determined that that was the occasion to swoop and arrest Walsh. Unfortunately for the offender, he happened to be present on that particular occasion and was also arrested. 24 The Crown accepts that the only participation by this offender in this act of obtaining a large amount of methylamphetamine was to accompany Walsh knowing that if he did not, Walsh would not go to collect the drug unless he found some other person to do it. Again, in my view the criminality of the offender is right at the very lowest point on the offences of this kind. That is not to say that these offences are not serious. The offender knew that he, by these acts, was assisting Walsh in his business of distributing methylamphetamine in the community and that was, in itself, a significant act of criminality. 25 The offender was sentenced in the Local Court on 11 April 2003, having been convicted by that court of two counts of stealing a motor vehicle. As I understand it, these two offences arose from the fact that the offender assisted Walsh in some way in stealing those motor vehicles and, as I understand it, spray painting at least one of them in order to disguise its appearance. The magistrate sentenced the offender to a total sentence of two and a half years' imprisonment with a non-parole period of eighteen months but ordered that the sentence be carried out by way of periodic detention. That sentence, in total, expires on 23 October 2005 and the non-parole period expires on 23 April 2005. 26 There is a valid argument in my view for assessing the matters before the magistrate as indicating more criminality than the offences before me. That is because, as I understand it, the offender's conduct was more seriously involved in that criminal activity than the one before me. On the other hand, as serious as that may be, to steal motor vehicles from the community, in particular motor vehicles of the nature which Mr Walsh was stealing, is a serious matter. It pales into insignificance in respect of the charges that are contained on the indictment before me, if one simply has regard to the maximum penalties of the offences. It is unfortunate to some degree that the offender has been sentenced by two different courts for activities which, although different, arise from the same set of circumstances, that is, the offender's involvement with the man Walsh. 27 There is an overwhelming subjective case and for the present it is unnecessary to give the details of it, or to indicate why it is that the sentence I am about to impose is appropriate. 28 The offender had a very unfortunate upbringing indeed. There were a number of tragedies in the family which had sought to make a home in Australia as a result of problems in Serbia. There was a death of a brother, followed closely by the death of the mother, the family fell apart and the offender has had no contact with his father for some period of time. Luckily, the family was able to stay together to some degree and the offender has been supported throughout his present ordeals by members of his family, who have supported him to the extent of providing considerable bail for him. 29 The offender was married when he was aged twenty and has three children ranging in age from eleven, being the eldest, to three years. There has been a break-up in the marriage, at least of a temporary nature, which the offender sees as being the result of his involvement with amphetamines, increasingly so through his relationship with Walsh. However, the offender maintains a close contact with his wife and children, although they are not living together at the present time. Perhaps sensibly, they have decided to put on hold considerations of what they should do in relation to their marriage until the criminal proceedings against the offender have been finalised and he is aware of what will be required of him by way of punishment. It is hoped, at least by the offender, that when these matters are finally settled they will be able to resume eventually their marriage relationship and again become a family as they were before the troubles began. 30 There is no doubt that the offender is not only a hard working man in his work as a spray painter but a highly talented one and a very valued employee. There is a letter to that effect from his current employer. It also seems that as part of the service of his sentence of periodic detention he, having entered into Stage 2, has become involved in a community project and has a glowing reference from the person with whom he has been undertaking his community work as part of his sentence. 31 Such is the nature of the offender that the Probation and Parole Service believe that it is unlikely that he could benefit from supervision because there is simply no underlying issue that needs to be addressed in order to have the offender rehabilitated. It seems to me quite plainly that his rehabilitation was assured as from the date that Walsh was arrested and placed into custody and could no longer influence him or those in the community who came into contact with him. 32 The Crown has tendered material to me which, besides the summary of facts, contains some submissions on sentence. Those submissions point out the objective circumstances, the matters of aggravation and the matters of mitigation under s 21A but again it seems to me that these matters are so obvious that it is unnecessary to detail them. 33 On the one hand, Mr Walsh's activity was highly criminal. The drug in respect of which he was arrested on the second count was of a high level of purity, a pound of methylamphetamine, worth a substantial sum of money in itself but worth a more considerable sum of money once Melinda Love had got to work on it and it was distributed in the community. 34 On the other hand, as I have attempted to indicate, if one stands back and looks at the actual criminal responsibility for the offence, it is very slight indeed. There is no suggestion at all that the offender was otherwise part of Mr Walsh's drug enterprise. There is no suggestion that he was to receive any financial benefit at all and it is likely that he was motivated to act as he did on the spur of the moment simply because of his association with Walsh and because he hoped to get a small amount of methylamphetamine as a result. 35 As I have already indicated, his rehabilitation has already taken place. There is absolutely no likelihood of him re-offending, certainly in a serious way, and in my view the rehabilitation of the offender is not a matter for the court's concern. 36 I have been somewhat troubled by what I should do about the matter, to some extent because of the way the offender has come to be sentenced. However, I have determined that a sentence of imprisonment is necessary, at least for the purposes of general deterrence which is very high indeed in a case such as this so that other persons in the community, for whatever reason, will not be minded to involve themselves in any way, even in the most menial way, in the enterprise of drug trafficking in this State. 37 However, it seems to me that I must take into account the sentences which have been imposed by the magistrate because, as I have endeavoured to indicate, although they are separate acts of criminality, they arise from the same circumstances that gave rise to the present offences. 38 Although a gaol sentence is necessary, it seems to me that again I could give him a sentence of very significant leniency and order that the sentence be served by way of periodic detention. It should be obvious by now that the sentence that I am about to impose, and particularly the fact that I am ordering that it be served by way of periodic detention, is a very exceptional sentence in respect of a very exceptional case of offences of this kind. 39 I have indicated to the Crown and counsel appearing for the offender what I intended to do. That was not simply so that I could get acknowledgment by counsel that it was appropriate punishment and to enable them to have the opportunity, or at least for the Crown to have the opportunity to indicate his objection to the sentences as being appropriate punishment for the offences, but also to ensure that I have the power to do what I am about to do. 40 Because, in my view, the offender's rehabilitation has occurred and there is no likelihood of re-offending and no work for the Probation and Parole Service to do, there is no point at all in a non-parole period being fixed. In my view the appropriate sentence now to be imposed is one which takes into account the totality of his criminality, as I have indicated, in particular, in the matters dealt with by the magistrate. 41 In respect of the first count on the indictment, the offender is sentenced to imprisonment for two years to be served by way of a fixed term dating from 21 May 2004 and expiring on 20 May 2006. That sentence is to be served by way of periodic detention. 42 In respect of the second count on the indictment that I consider to be the less serious one, the offender is sentenced to a fixed term of five months. That sentence is to commence on 21 May 2006 or a date close to that on which he is to attend for periodic detention and is to expire on 25 October 2006 or thereabouts. 43 It is my intention by making these orders that for the whole of the offender's criminality derived from his association with Mr Walsh, he should serve a sentence of imprisonment of three years and six months. That sentence is to date from 11 April 2003, the date upon which he was sentenced by the magistrate; that there should be no non-parole period. 44 It should be borne in mind in this particular case that that sentence is a severe one in one way because the offender works five days a week. He is deprived by reason of his sentence of imprisonment from seeing his children on the weekends and participating in their daily lives. For example, he has no ability to see his son play soccer - something other fathers would in the community. One has to take into account that deprivation when considering the sentence that has been imposed upon him. It will, for a period of three and a half years, deny him the normal enjoyments of a member of the community on weekends in relation to his family. 45 The offender spent a period of about five months on remand before being granted bail in respect of this matter and presumably the other charges which were dealt with by the magistrate. For a person of really no prior convictions or no relevant prior convictions and with the nature of the person that is presented from the pre-sentence report and other material, that would have been a very significant sentence indeed. That is a matter clearly that I have taken into account as I am required to do by the Crimes (Sentencing Procedure) Act. 46 I also should indicate that I was conscious of the fact that if I sentenced the offender to a period of full time incarceration, the result would be that the sentence imposed by the magistrate would be converted into a full time custodial sentence, which would have been overly harsh having regard to the fact that it was being converted simply because I thought it was appropriate to sentence the offender to a relatively short period of imprisonment. That would have been a consequence which, in my view, would have made the sentence overly harsh having regard to his criminality in the particular matters before me.